Employment

Requesting maternity leave for the birth of a child

Residents

Non residents

Update in progress

Each women carrying out a professional activity (as a salaried worker, a self-employed or an apprentice), is entitled to maternity leave, composed of antenatal leave (8 weeks before the presumed date of delivery certified by a medical certificate) and of postnatal leave (12 weeks after the presumed date of delivery). On the one hand, this benefit helps to protect the health of the women concerned and, on the other, enables them to devote themselves fully to their child after birth.

During pregnancy and maternity employees are also entitled to:

protection against dismissal (except for serious misconduct) as of the beginning of pregnancy;

special health and safety protection if they occupy a position involving specific risks;

protection against risks related to night work;

exemption from work to allow them to attend their antenatal check-ups;

several weeks of leave before and after the birth;

a reduction in working time if they are breastfeeding.

Who is concerned

All pregnant women in professional occupations subject to insurance are granted maternity leave provided that they do not benefit from other more favourable legal or contractual provisions. This includes:

women bound by a contract of employment;

women with an apprenticeship contract;

those who practice a profession under the status of self-employed.

Preliminary steps

How to proceed

Pregnancy

Informing the employer and the health insurance fund of the pregnancy

Pregnant employees must inform their employer of their pregnancy status by means of a medical certificate;

by registered letter with acknowledgment of receipt;

by handing it in person, in which case the employer must acknowledge receipt on the copy of the certificate;

by fax or email, provided the certificate is transmitted in a clean and legible format.

In order to prevent potential work-related risks during pregnancy, it is preferable to inform the employer as soon as possible in order to benefit, if needed, from adjustments to or a change of workplace.

Pregnant women are under no obligation to inform potential employers about her pregnancy during the job interviews, even if asked.

A certificate attesting to the pregnancy must also be submitted to the competent health insurance at the same time the leave is requested.

In any case a
medical certificate indicating the presumed date of delivery is established during the
last 12 weeks of pregnancy and sent to the employer and to the competent health insurance during that period .

Trial period

Employers may not terminate the employee's contract during the trial period if they have been duly informed of the pregnancy.

The trial period of a permanent employment contract is suspended from the date of the handing over of the certificate attesting to the pregnancy until the beginning of the maternity leave. The remaining time of the trial period will start running at the end of the period of protection against dismissal (i.e. 12 weeks after the delivery).

In the case of a
fixed-term employment contract, there is no suspension of the trial period nor renewal of the fixed-term contract, which expires normally at the end of the term initially provided for.

Protection of pregnant women from dismissal

Employers are prohibited from laying off, or cancelling a job interview with a pregnant employee when they have been duly informed of this fact. This prohibition of dismissal is valid throughout the pregnancy and until the end of the postnatal leave (12 weeks after birth). Such a dismissal or convocation is void by operation of law.

In the event of notification of a dismissal before the medical confirmation of the pregnancy, the employee has 8 days from the date of the dismissal, to prove her condition by presenting a medical certificate by registered letter (if she has not done so yet).

The employer must then annul the dismissal with the employee's consent. If the employer refuses to annul the dismissal, the employee has 15 days following the termination of the contract to file a claim to the labour tribunal in order to demand that the dismissal be declared null and void.

In the event of cessation of business, the termination of the employment contract will not be declared null and void.

If the pregnant employee has not appealed against her dismissal, asking for it to be nullified, within
15 days, she is always within her rights to file a
lawsuit for
unfair dismissal, seeking damages from her former employer on those grounds. It should be noted that these two actions are alternative, rather than cumulative, options.

While the pregnant woman is protected against dismissal with prior notice, her contract can still be terminated in the event of serious misconduct. The employer may pronounce the employee's immediate suspension pending the decision of labour tribunal, but he cannot send the actual letter of dismissal of his own initiative. They must then file a request with the labour tribunal in order to be authorised to terminate the employment contract. The tribunal will assess the gravity of the misconduct and decide whether or not to validate the immediate suspension and thus terminate the employee's employment contract.

Serious misconduct is considered to be any fact or fault which immediately and irreparably renders it impossible to maintain or carry on a working relationship.

The employee may apply to the president of the labor court within 15 days of the notification of the layoff for a ruling on the maintenance or suspension of remuneration pending a final resolution of the dispute.

In the event of an irregular dismissal without a suspension that occurred in the conditions stated above, the president of the tribunal will order the reinstatement of the employee in the business.

Antenatal check-ups

The pregnant woman also benefits from an exemption from work, without loss of pay, to attend the prenatal exams when these examinations must take place during working time.

Protection of pregnant or breastfeeding women

Pregnant or nursing women are not obliged to work overtime (that is to say, any work carried out beyond the daily and weekly limits of normal working hours) if they do not wish to do so.

Protection against work which is hazardous to health and safety

Certain activities are likely to present a specific risk of exposure to substances, processes or working conditions that are potentially hazardous for pregnant or nursing women. The employer has to assess the risk and, where appropriate, to take the necessary measures, with the assent of the occupational physician, to prevent exposure of the pregnant or nursing woman to this risk. These measures involve a temporary adjustment of working conditions or working time with the maintenance of the previous wage.

Difficult and dangerous tasks are classified into 2 categories:

category 1 (activities that are likely to present a risk of exposure to certain agents, procedures or working conditions):

tasks such as lifting loads of over 5 kgs;

tasks involving a risk of falling or slipping;

tasks requiring the employee to constantly be in a crouched or bent position.

category 2 (activities which present a risk of exposure to certain substances or working conditions likely to endanger the health and safety of employees):

tasks exposing the woman to chemicals such as lead;

tasks exposing the woman to biological agents such as toxoplasmosis or the rubella virus.

For jobs in the 1st category, the employer is obliged to carry out an evaluation to verify if the woman incurs a risk to her health in the event of continuation of work and if there is a repercussion on the pregnancy or nursing. This assessment is carried out in collaboration with an occupational physician, who will evaluate the situation:

in the event of a risk, temporary workstation adjustment (conditions or working time) is required to eliminate the risk;

or, if an adjustment is technically or objectively impossible, a change of posting with maintenance of the previous wage;

or, if the transfer is technically or objectively impossible, exempt the employee from work during the whole period in which is necessary to protect her health and safety.

For jobs that fall in the 2nd category, it is sufficient that a risk of exposure exists to force the protective measures to be put in place. If this risk is given, the employer, with the assent of the occupational physician, must:

either to a change of posting with maintenance of the previous salary;

or, if the transfer is technically or objectively impossible, exempt the employee from work during the whole period in which is necessary to protect her health and safety.

None these protective measures can entail any loss of remuneration for the employee concerned. Should the employee be exempt from work, the employer stops paying her salary. The employer submits the recommendation from the relevant occupational physician to the health insurance fund which, in return, will pay the employee a financial compensationequivalent to her salary.

The following documents are required:

the original recommendation (pink sheet) from the occupational physician;

a copy of the employer's request for advice;

a copy of the medical certificate indicating the expected date of delivery.

Protection against night work

A pregnant woman cannot be forced to work at night (i.e. between 10 pm and 6 am) if, in the opinion of the competent occupational physician, it is contrary to her safety or health. The same applies to nursing women until the child's first birthday.

In order to benefit from this provision and to be transferred to a day work station while maintaining her previous salary, the pregnant or nursing woman must send a formal request to her employer:

Within 15 days of the receipt of the documents, the occupational health physician notifies the employee and the employer of their opinion.

If the occupational physician is of the opinion that an exemption from night work is necessary, the employer is required to:

either transfer the pregnant or nursing woman to a daytime job;

or, if a transfer to a daytime job is not technically or objectively possible, the employer, with the assent of the occupational physician, is obliged to exempt the employed woman for the entire period necessary for the protection of her safety or health. This period is fixed by the occupational physician.

In the case of transfer to a daytime job, the employee continues to receive her previous salary. In the event of a exemption from work, the employee no longer receives her salary but an equivalent compensatory amount paid by the CNS.

Maternity leave

Conditions for the granting and amount of maternity benefits

During prenatal and postnatal leave, women who are employed (employees or self-employed) are entitled to a maternity allowance paid by their health insurance (and not by their employer) provided that they have been affiliated with health and maternity insurance on a compulsory basis for at least 6 months during the year preceding the maternity leave.

They can not be combined either with a pecuniary indemnity for sickness or with any other professional income.

Prenatal leave

Prenatal leave begins 8 weeks before the presumed date of delivery, which is certified by a recent medical certificate (established no earlier than 12 weeks before the presumed date of delivery).

If the birth occurs before the expected date of delivery, the days of antenatal leave not taken are added to the postnatal leave (however, the total duration of maternity leave may not exceed 20 weeks).

If the birth occurs after the expected date of delivery, prenatal leave is extended to the actual date of the birth without reducing the duration of the postnatal leave (8 weeks).

Impact of the leave on the working relationship

During maternity leave, the employment contract is maintained. Maternity leave is considered as an effective period of work.

The employers is therefore required to:

take maternity leave into consideration when calculating the days of annual leave. The days of leave not taken by the employee before to the start of the maternity leave can be deferred within the legal deadlines (until 31 March of the following year);

take into account the period of maternity leave when calculating the seniority and related rights;

keepthe employee's position open while she is on maternity leave, or an equivalent position corresponding to her qualifications and with a salary at least equivalent to her current salary level;

maintain the advantages acquired by the employee prior to her maternity leave;

allow the worker to benefit from any improvements in the working conditions introduced during the adoption leave.

During the maternity leave, the employee no longer receives neither her salary nor the benefits in kind which she was entitled to before her leave (meal-vouchers, company car etc.). Those are replaced by the maternity benefits.

Return to work

Breastfeeding breaks

either 2 breastfeeding breaks of 45-minutes at the beginning and end of the employee's normal working day;

or a single 90-minute breastfeeding break when:

the working day is broken up by a one-hour break only, and/or;

the woman cannot breastfeed her child at a location close to the workplace.

Breastfeeding breaks must be considered as working time and paid accordingly.

The employer can ask the breastfeeding employee to provide a
medical certificate as proof of breastfeeding.

Parental leave

At the end of the maternity leave, both parents are entitled to a part-time or full-time parental leave.

Termination of the working relationship

Resignation of the employee

If the employee decides to raise her child after her maternity leave has ended, she does not have to return to work and can resign without notice period (on the basis of a resignation letter) without becoming subject to a severance payment.

For a period of one year, she however benefits from re-employment priority and all the advantages she had before leaving.

Resignation without notice is only possible in the event where the employee decides to give up her job in order to fully and exclusively devote herself to the education of the child.

Resignation without notice is not possible for women who simply wish to change employer at the end of their maternity leave.

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